08-05-2025
Consultation doesn't always equal consent
Pauly DenetclawICTUNITED NATIONS — The 24th session of the United Nations Permanent Forum on Indigenous Issues was focused on implementing the Declaration on the Rights of Indigenous Peoples — locally, nationally and globally.'At every stage, the global push for the so-called green transition has intensified demand for critical minerals, lithium, cobalt, nickel and others, many of which lie beneath sacred Indigenous lands and territories,' Aluki Kotierk, chair of the Permanent Forum, said in a speech. 'We cannot ignore (what) this threat poses to our rights, lands and way of life. Extractive activities when carried out in disregard of the right to self determination and the free, prior and informed consent of Indigenous peoples become another form of colonialism. We are not anti-development, but development must be on our terms and must be just.'An important aspect of the declaration, adopted by all 193 UN member states, is free, prior and informed consent.'It ensures that when Indigenous people sit down with a government, a company, or another third party, that they'll have all of the information they need, enough time, and really a fair opportunity to negotiate an outcome that's mutually beneficial to them and the other party,' said Kristen Carpenter, law professor and co-director of the Implementation Colorado-based project is a joint initiative between the Native American Rights Fund and the University of Colorado Law School to educate and advocate for the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. Currently, the United States doesn't use this framework for decision making, opting for tribal consultation where the outcome doesn't have to include consent. However, countries who approved the declaration are required to codify it into their national laws. Native American Rights Fund and the National Congress of American Indians have been advocating for a transition to free, prior and informed leaders from the United States often don't participate in their capacity as an elected official because the nations would have to apply as a non-governmental organization, which could be seen as a diminishment of tribal sovereignty. Despite this, the largest number of tribal leaders attended this year's forum, according to Carpenter. 'I'm so happy we have more tribal leaders than ever,' Carpenter said.
Tribal leaders play an important role locally, statewide and nationally. This could extend globally. 'It's important for tribal leaders to be here because you have a seat at the table,' said Joe Deere, co-chair of NCAI's international committee. 'Your voice is going to get heard. You're going to be able to communicate with other people across the United States, and now even other countries.'Over the last few years, the two national Indigenous organizations have ramped up their work internationally to advocate for the implementation of free, prior and informed consent in the United States, knowing it could take many years to actualize. 'We need to be ready to run a marathon to make that happen,' said Aaron Jones, co-chair of the international committee for the National Congress of American Indians. 'We're talking about implementing this and I know we're really in the early stages.'
HistoryIn 2007, an overwhelming majority of the countries that make up the UN General Assembly voted in favor of the United Nations Declaration on the Rights of Indigenous Peoples. It's not shocking that the United States, Canada, Australia and New Zealand initially voted against the legal, nonbinding declaration. (Eventually the four countries changed their position on a document that in essence states that Indigenous peoples are human beings with the right to exist in perpetuity.) The most well-known and heralded right listed in the 46 articles is free, prior and informed consent. This principle doesn't just apply to land rights, which it's often conflated with. It also applies to culture, language, food systems, intellectual property, governmental laws and landback. The phrasing is intentional with every word having a principle behind it. Free meaning that consent is given without coercion, threats, violence, manipulation or bribery. Consent is given are many examples of consent given under threat, violence or coercion in the United States.
Navajo leaders signed the Treaty of 1868 with the federal government after the tribe was death marched over 400 miles from their homelands that span New Mexico, Arizona, and Utah to Bosque Redondo in eastcentral New Mexico where they were placed in a concentration camp. More than 8,000 Navajo people were forcibly kept at Bosque Redondo for three years. During that time, illness, starvation, or exposure took the lives of over 2,000 Navajo people. During the termination era, the federal government passed the Indian Relocation Act of 1956. It would coerce thousands of Indigenous people to leave their homelands with the promise of job opportunities, more pay, and housing. Instead, many were left without work, training or housing. Prior means that Indigenous communities and nations have adequate time to go through the decision-making process well-before governments, companies or other third parties have made a decision. The third word of the phrase, informed, means that Indigenous nations must be completely and fully informed about the environmental, health and social impacts of a planned project.
'For example, in the Philippines, when there was a mining project in one area, and the community said, 'We want to know the details of the project. So if you don't share to us the full information of the project, we cannot come out with an informed decision. We need to know everything,'' said Joan Carling, a renowned Indigenous rights activist and environmentalist. The documentation has to include all the information about the proposed project including size, purpose, scope and time length. Most importantly, the information must be shared in a language the community is most comfortable with, and in a format that aligns with the community's needs. 'What can be the positive and negative impacts of the project? So, it should be complete and accurate information,' said Carling, Kankanaey tribe in the Philippines codified free, prior and informed consent in the Indigenous Peoples Rights Act passed in 1997. A year later, Ecuador passed a new constitution that recognized Indigenous peoples right to free, prior and informed consent. In 2011, Colombia's Constitutional Court, which acts much like the Supreme Court, made a historic ruling that recognized the decision-making framework as a human right for Indigenous peoples. However, its full and fair implementation hasn't come without is a big difference between consultation and consent. Consultation in the United States doesn't have to include consent but tribal nations have made great strides in this area. Although not required, it's often a goal for the federal government to reach a consensus or agreement with a tribal nation. Historically, this hasn't always been the case. In 1948, the federal government approved the Garrison Dam that flooded 152,000 acres of Mandan Hidatsa and Arikara land in North Dakota, despite objections from the tribe. It forced the relocation of 325 families from the tribe. Last year, a judge ruled against Arizona-based tribes, Tohono O'odham Nation and San Carlos Apache Tribe, in a suit that was challenging the construction of the SunZia transmission line in southern Arizona's San Pedro Valley. The line passes through an area that holds historic, cultural and spiritual significance for the nations. The two tribes have been fighting its construction for years, advocating that it be built alongside land that has already been developed. It crosses 'one of the most intact cultural landscapes in the Southwest,' a 2024 lawsuit by the Tohono O'odham Nation stated. The project was a cornerstone of former President Joe Biden's green energy agenda. 'The SunZia Transmission Project will accelerate our nation's transition to a clean energy economy by unlocking renewable resources, creating jobs, lowering costs, and boosting local economies,' Deb Haaland, former Interior Secretary, said in a 2023 press release. 'Through historic investments from President Biden's Investing in America agenda, the Interior Department is helping build modern, resilient climate infrastructure that protects our communities from the worsening impacts of climate change.'The case was appealed to the Court of the Appeals for the Ninth Circuit. The panel of judges heard oral arguments on March 26. An opinion has yet to be released. Adopting the principles of free, prior and informed consent could help to alleviate legal issues like this. The federal government and companies could avoid lengthy and costly legal battles by engaging in this process. 'One thing we see over and over again, and I'm sure everyone in this room is aware that projects will come in, including now renewable energy projects, there will be human rights violations, violations of the right to (free, prior and informed consent), land rights. People will exercise their right to protest and raise concerns about those harms,' said Christine Dodsen, co-lead of the Civic Freedoms & Human Rights Defenders Programme. 'Then there will be a crackdown against human rights defenders, either directly by the company, by governments, and that will then lead... to financial risks, legal risks for the company. For business actors, this model could lead to reduced risks, and a competitive advantage.'The United Nations Permanent Forum on Indigenous Issues will release a report with recommendations, to the United Nations and member states, based on interventions given during the two-week event. It will be released sometime this year. The forum concluded May 2.
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